(영문) 서울행정법원 2020.4.3. 선고 2019구합4844 판결

Defendant 2) On January 24, 2013, confirmed that the decision to dismiss the application for payment of consolation benefits to the Plaintiff is null and void, and the Defendant shall pay the compensation for damages to the Plaintiff.

Reasons

1. Basic facts

A. On June 26, 2012, the Plaintiff filed an application for the payment of consolation money with the “Support Committee for the Investigation of Damage Caused by Forced Overseas Mobilization” (hereinafter referred to as the “Committee”) on the ground that the Plaintiff, as a private sector type of the network B (hereinafter referred to as “the victim of compulsory mobilization”), is the victim of compulsory mobilization in a foreign country, under the Special Act on Support for the Investigation into Forced Mobilization and Military Mobilization Victims, etc. (hereinafter referred to as the “Compulsory Mobilization Investigation Act”).

B. On October 24, 2012, the instant commission recognized that the Plaintiff was unable to be mobilized as a worker in a Japanese region under the Japanese colonial rule in 1944, during the period from August 15, 1945, or during the process of returning to the Republic of Korea, and thus, the Plaintiff constitutes a victim of forced mobilization abroad under Article 2 of the Compulsory Mobilization Investigation Act, but the Plaintiff is not a bereaved family member under Article 3 of the same Act during the period of the deceased’s death penalty (hereinafter referred to as “pre-determination”) and decided to dismiss an application for payment of consolation benefits pursuant to Article 22 of the same Act on the ground that the deceased’s death penalty is not a bereaved family member under Article 3 of the same Act.

C. The Plaintiff filed an application for reexamination on December 20, 2012. However, the instant commission dismissed the application for reexamination on the ground that the Plaintiff’s assertion that the Plaintiff would pay consolation benefits to the private sector siblings is not a new content to reverse the initial decision since all of his/her bereaved family members died on January 24, 2013 under the Compulsory Mobilization Investigation Act (hereinafter “instant decision”).

D. Meanwhile, pursuant to Article 19(1) of the Compulsory Mobilization Investigation Act, the term of existence of the instant commission expired on December 31, 2015, and the Defendant succeeded to the affairs under its jurisdiction pursuant to Article 19(4) of the same Act.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 3 (including branch numbers), the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Determination as to the legitimacy of the instant lawsuit (ex officio)

A. Determination as to the claim for nullification confirmation

1) Where the Act provides for a procedure for raising an objection against the original decision rejecting a party’s petition, separate from the original decision, the foregoing decision shall be filed against the administrative agency that rendered the original decision that became the subject of an appeal litigation, and the procedure for raising an objection shall be corrected by itself if the administrative agency re-examines the original decision and makes an objection against the original decision, and shall also undergo the same examination procedure as the original decision, and if the objection is prescribed not to affect the filing of an administrative appeal or administrative litigation against the original decision, the decision not to accept the objection against the original decision shall merely maintain the contents of the original decision, and it shall not be deemed an exercise of public authority or an administrative action equivalent thereto that may cause a new change in the rights and obligations of the person who filed the objection, and thus, it shall not be subject to an appeal litigation, separate from the original decision (see, e.g., Supreme Court Decisions 2010Du8676, Nov. 15, 2012; 2015Du45953, Jul. 27, 2016).

On the other hand, Article 27 of the Compulsory Mobilization Investigation Act provides that "the Commission shall deliberate and decide whether to provide support and the amount thereof within six months from the date it receives an application for payment of consolation money, etc." and Article 28 (1) provides that "where there is an objection against the decision of the Committee on the application for payment of consolation money, etc., the Commission may file a written application for review with the Committee within 60 days from the date it receives a written decision."

2) In light of the language and purport of the relevant provisions, in the instant case, the application for reexamination as prescribed by Article 29(5) of the Compulsory Mobilization Investigation Act constitutes a procedure to rectify the case where the instant committee, which rejected the application for payment of consolation benefits, re-examines the applicant’s application and makes an error by examining the application, on the grounds that it does not meet the requirements for payment, such as consolation benefits. Therefore, the decision to accept the application for reexamination can be deemed a new disposition that the applicant received the application for payment of consolation benefits. However, the decision not to accept the application for reexamination is merely maintaining the contents of the previous decision, and thus cannot be deemed an exercise of public authority or an administrative action corresponding thereto, which may cause a new change in the applicant’s rights and duties, and thus, it is reasonable to deem

However, the part of the claim for confirmation of invalidity among the lawsuits in this case asserts the validity of the subsequent action decision in this case, which is the purport of not accepting the request for review under Article 29(5) of the Compulsory Mobilization Investigation Act and maintaining the original decision. Thus, it is unlawful as it concerns an act that cannot be subject to appeal

[Supplementary family members" under Article 3(1) of the Compulsory Mobilization Investigation Act means the victims, victims of forced overseas mobilization, the spouse and children (title 1), grandchildren (title 2), grandchildren (title 3), brothers and sisters (title 4), and those who fall under the family members of the deceased or missing, who are determined as bereaved family members pursuant to subparagraphs 3 and 6 of Article 8, and Article 8(2) provides that "the priority order of bereaved family members to receive consolation benefits, etc. under Article 4 shall be the order of each subparagraph of paragraph (1) above." Thus, since Article 3(1) of the Act on the Compulsory Mobilization Investigation does not fall under the bereaved family members under Article 3 of the Act on the Compulsory Mobilization Investigation, it is evident that there is no illegality in the decision of this case since the plaintiff related to the deceased and the deceased does not correspond to the bereaved family members under Article 3 of the Act on the forced Mobilization Investigation."

B. Determination on the claim for damages

The so-called “performance of obligation” that orders an administrative agency to actively engage in a certain act is not allowed (see Supreme Court Decisions 87Nu868, Sept. 12, 1989; 91Nu4126, Feb. 11, 1992, etc.). However, the Plaintiff requested against the Defendant for payment of compensation as stated in the purport of the claim, but it constitutes a litigation for performance of obligation and thus cannot be claimed as an administrative litigation.

Even if this part of the claim is deemed to be a party suit under public law, in light of the provisions of Articles 28 and 29 of the Compulsory Mobilization Investigation Act, regardless of the issue of eligibility for the defendant, when comprehensively examining the contents of the provisions, etc., the person who wishes to receive bereaved family consolation benefits, etc. under the Compulsory Mobilization Investigation Act should first seek payment of consolation benefits, etc. to the commission of this case, where the commission of this case applied for the payment of consolation benefits, etc., and made a decision to dismiss such application, etc., if the commission of this case decided to dismiss such application, it is reasonable to deem that he/she ought to seek payment as a party suit only after he

Ultimately, the part of the claim for compensation for damages in the lawsuit of this case is deemed as unlawful.

4. Conclusion

Since the lawsuit of this case is unlawful, it is so decided as per Disposition by the assent of all participating Justices.

Judges

The presiding judge, judges and assistant judges;

Judge Han-hee

Judges Park Young-young

Note tin

1) Although the Plaintiff stated the Defendant in the president as the Minister for Administrative Safety and Self-Governing Affairs, it is obvious that it is a clerical error.

2) As examined below, the subject of the action that the plaintiff seeks confirmation of invalidity is "the Support Committee for the Victims, etc. of Forced Mobilization Damage Investigation and Forced Mobilization of Foreign War War", or since January 1, 2016, the administrative affairs of the committee were succeeded to the defendant pursuant to Article 19 (4) of the Special Act on the Support of Victims, etc. of Forced Mobilization Investigation and Forced Mobilization of War War War War, the defendant is identified as the subject of the action, as stated in the written claim of the complaint.

On the other hand, on January 31, 2020, the plaintiff clearly stated that the plaintiff seeks nullification of the above disposition, not revocation, on the date of pleading.

3) Meanwhile, on the premise that the plaintiff sought revocation of the prior decision of this case, the defendant set up a defense prior to the merits that the period for filing a lawsuit seeking revocation of the prior decision of this case was terminated. However, as seen earlier, the plaintiff sought nullification of the subsequent decision of this case. As such, the defendant's defense prior to the merits is different from the premise, and thus it is not separately determined.

4) Although it is somewhat unclear, the Plaintiff asserts that the subsequent order of this case constitutes a provisional disposition in the complaint and the briefs, and thus, is unlawful.